Vicarious liability
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509
The driver of a petrol tanker lit a cigarette while
... [Show More] delivering petrol to an underground tank. The lit cigarette caused a fire. The
court had to decide if the employer of the driver was liable for the damage. The employer argued that the driver was not
permitted to smoke while delivering petrol. The court decided that the employer was nevertheless liable because, at the
time, the driver was carrying out an authorized task.
Deatons Pty Ltd v Flew (1949) 79 CLR 370
A bar attendant at a hotel got into an argument with a customer, Flew, about his continued use of bad language. The bar
attendant threw a glass of beer at Flew’s face. Flew commenced legal proceedings against the owner of the hotel, Deatons
Pty Ltd, claiming that Deatons Pty Ltd was vicariously liable for the bar attendant’s actions. The court decided that the bar
attendant was not acting within the scope of their employment at the time of the incident and that, therefore, Deatons Pty
Ltd was not vicariously liable for the bar attendant’s actions.
The Tort of Trespass
Stanley v Powell [1891] 1 QB 86
Stanley and Powell were hunting together. Powell shot at a bird and missed, and the bullet ricocheted off of a tree and hit
Stanley. Stanley sued Powell in the tort of trespass to the person. The court decided that Powell had not committed trespass
because the interference was neither intentional nor negligent; it was accidental.
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Kelsen v Imperial Tobacco Co [1957] 2 QB 334
An advertising sign erected by Imperial Tobacco Co on their property projected into the airspace above a shop on Kelsen’s
neighbouring property. The court decided that the sign amounted to a trespass to land.
Rixon v Star City Pty Ltd [2001] 53 NSWLR 98
Rixon continued to play roulette at the Star City casino after being banned. A Star City employee confronted Rixon and
detained him until the police arrived. When the employee confronted Rixon, the employee placed his hand on Rixon’s
shoulder to get his attention. Rixon sued Star City in the tort of battery. The court decided that the physical contact was
made to get Rixon’s attention and as such was ‘generally acceptable in the ordinary conduct of daily life’. Star City was not
liable.
Defences to the Tort of Trespass
Southwark LBC v Williams [1971] Ch 734
Williams was a homeless person found squatting in a house owned by the Borough. When sued for trespass he sought to
rely upon the Defence of necessity. The Defence failed. As the court explained, if homelessness was recognized as a
Defence to trespass ‘no one’s house would be safe’.
The Tort of Nuisance
Silservice v Supreme Bread Pty Ltd (1949) 50 SR (NSW) 207
Queues of people lining up to buy bread from a shop owned by Supreme Bread were blocking access to a neighbouring
shop owned by Silservice. Silservice sued Supreme Bread in the tort of public nuisance. The court decided that the
interference was not unreasonable, and that Supreme Bread was therefore not liable, but went on to explain that a defendant
will be liable if the crowd is attracted by something done by the defendant which is not necessary for the conduct of their
business; or the defendant’s business premises are inadequate or not suitable to hold or control the likely crowds; or the
defendant failed to use some reasonable means to minimize or prevent the damage to the plaintiff.
The Tort of Defamation
Bjelke-Peterson v Warburton [1987] 2 Qd R 465
The leader of the Queensland Opposition claimed that certain government ministers had ‘their hands in the till’. The court
decided that this statement expressed by innuendo the claim that the ministers were corrupt and was, therefore, defamatory.
The Tort of Negligence
Requirement 1: a duty of care
Donoghue v Stevenson (1932) AC 562
May Donoghue met a friend at a café. The friend ordered and paid for a bottle of ginger beer for Donoghue. When the bottle
arrived, the waiter poured a portion into a glass tumbler. Donoghue drank the contents of the tumbler. When Donoghue’s
friend poured the rest of the bottle into the tumbler, the remains of a partially decomposed snail fell out. The ginger beer had
been packaged in an opaque bottle, and therefore the presence of the snail had not been evident to Donoghue or the staff at
the café. Donoghue suffered from shock from the nauseating sight of the snail. She also suffered severe gastroenteritis as a
result of consuming the ginger beer. She sued the manufacturer of the ginger beer, David Stevenson, for £500 in damages.
Did Stephenson owe a duty of care to Donoghue even though there was no contract between them, and there was no fraud?
The court decided that when an article of food, medicine or the like is sold by a manufacturer to a distributor in
circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any
defect, the manufacturer is under a legal duty to the ultimate purchaser or consumer to take reasonable care to ensure that
the article is free from any defect likely to cause injury to health.
Bourhill v Young [1943] AC 92
A motorcyclist collided with a motor vehicle as a result of the motorcyclist’s careless riding. The plaintiff was standing
approximately 10 metres from the point of impact on the far side of a stationary tram. She did not see the accident, but she
heard the accident and saw its aftermath. She suffered nervous shock and sued the motorcyclist in the tort of negligence.
The court decided that it was not reasonably foreseeable that the conduct of the defendant could cause harm to someone in
the position of the plaintiff and that, therefore, the defendant did not owe the plaintiff a duty of care.
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Chapman v Hearse (1961) 106 CLR 112
Chapman was injured in a motor vehicle accident as a result of his negligent driving. Cherry stopped to assist him. While
attending to Chapman’s injuries on the road, Cherry was struck and killed by a car driven by Hearse. Cherry’s estate sued
Hearse for damages in negligence. Hearse claimed that Chapman had also been negligent and was partially responsible for
Cherry’s death. To succeed, Hearse needed to establish that Chapman owed a duty of care to Cherry – that is, that a driver
owes a duty of care to the people that might stop to assist them in the event of an accident.
The court decided that even though the precise chain of events leading to Cherry’s death was not reasonably foreseeable, it
was reasonably foreseeable that if Chapman was involved in a car accident someone might stop to assist him and that
person might themselves be injured or killed. Therefore, Chapman owed Cherry a duty of care.
Sullivan v Moody (2001) 207 CLR 562
The plaintiff was accused by his wife of the sexual abuse of their child. The child was examined by a doctor who reported
his suspicions of abuse to the Department of Community Welfare. The Department of Community Welfare investigated the
allegations against the plaintiff and concluded that the allegations could not be proved. The plaintiff sued both the doctor
and the Department of Community Welfare, claiming that as a result of the allegation by the doctor and the investigation by
the Department of Community Welfare, he had suffered shock, distress and psychiatric harm.
Was the plaintiff owed a duty of care by (1) the doctor and (2) the Department of Community Welfare? In other words, does
a doctor owe a duty of care to the parent of a child patient, and does a statutory authority owe a duty of care to an alleged
perpetrator of child abuse? After taking the salient features of the case into consideration the court concluded that the
plaintiff was not owed a duty of care by either the doctor or the Department of Community Welfare.
Tame v New South Wales (2002) 211 CLR 317
Mr and Mrs Annetts’ 16-year-old son left the family home to work for Australian Stations Pty Ltd (AS) as a jackaroo at a
cattle station in Western Australia. Before her son left home, Mrs Annetts phoned AS and was assured that her son would
work under constant supervision and would be well looked after. AS assigned the son to work alone as caretaker at a remote
station. In December 1986 a police officer phoned the Annetts and informed them that their son was missing. In April 1987
the Annetts were informed that the vehicle driven by their son had been found bogged in the desert. Later that day his body
was found.
The Annetts sued AS claiming that their son had died as a result of the negligence of AS and, as a result, they had suffered
an ‘entrenched psychiatric condition’. The court decided that there was a relationship between the Annetts and AS of such a
nature as to give rise to a duty of care.
Requirement 2: Breach of the Duty of Care
Bolton v Stone [1951] AC 850
Stone lived in a house adjacent to the Cheetham Cricket Ground. A batsman playing in a match at the Cricket Ground hit the
ball out of the ground. The ball hit Stone while she was standing outside her house. It was only very rarely that a ball was
hit over the fence during a match: it had only happened five or six times in 37 years. The Committee and Members of the
Cheetham Cricket Club (CCC) were aware of the occasions on which it had occurred. No one had previously been struck by
a cricket ball that was hit out of the ground, and the street in which Stone lived was not the subject of heavy traffic. Stone
sued the Committee and Members of the CCC seeking to recover damages for the injuries she sustained when hit by the
cricket ball.
She alleged that her injuries were caused by their negligence in not taking steps to avoid the danger of a ball being hit out of
the ground, such as moving the wickets a few steps further away from her road or heightening the fence. The court decided
that it was foreseeable that a person on the adjacent road could be struck by a ball hit out of the ground. However, it also
concluded that the CCC did not breach their duty of care to Stone because reasonableness did not require precautions to be
taken against the very small risk that someone would be struck by a ball hit out of the ground, i.e. a reasonable person
would not have taken any additional precautions given the very low risk of injury.
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Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
While batting in an indoor cricket match, Woods mistimed a shot and was hit in the right eye. The injury caused him to lose
sight in the eye. The indoor cricket match was organized by Multi-Sport Holdings Pty Ltd (MSH) and held at a facility
owned and operated by MSH. MSH supplied some equipment to the players (bats, balls and groin protectors) but did not
provide helmets with a face guard or pads.
MSH did not display a sign warning of the risk of serious eye injury. Woods sued MSH for damages alleging MSH had
breached the duty of care it owed to him by (1) failing to supply a helmet with a face guard to Woods, and (2) failing to
warn Woods of the risk or danger of injury.
The court decided that a reasonable person would not have provided a helmet with a guard or warned Woods about the risk
of eye injury. Indoor cricket is fast paced and conducted in a confined space, and there is an obvious risk of collision
between players and of any player (batter, bowler or fieldsman) being hit by the ball. MSH did not have an obligation to
warn players of this obvious risk or to provide them with protection.
Paris v Stepney Borough Council [1951] AC 367
Paris worked for the Metropolitan Borough of Stepney (MBS) as a fitter’s mate in the garage of MBS’s Cleansing
Department. Due to an injury he sustained as a result of an air raid during World War II, he was practically blind in his left
eye. MBS was aware of this. Paris was removing a rusted bolt using a steel hammer while performing maintenance work on
the under-carriage of a vehicle when a piece of metal flew off and entered his right eye causing him to lose sight in that eye
as well. It was known to MBS that when employees undertook the type of work being performed by Paris at the time he was
injured, dirt sometimes got into their eyes and pieces of metal might sometimes fly off when bolts were removed. However,
it was not usual for employers to supply goggles to persons employed in garages and engaged in similar types of work. Paris
sued MBS for negligence. He alleged that MBS breached its duty of care to Paris by (1) failing to provide him with suitable
goggles for the protection of his eyes while he was engaged in the work he was engaged in, and (2) failing to require him to
wear the goggles.
The court stated that a reasonable employer would take different precautions against a risk of likely injury for different
employees. In addition, it stated that the gravity of the consequences of injury to the particular employee was a relevant
consideration in determining the reasonable precautions against injury that an employer was required to take. In this case
since the possible harm to Paris was more serious than the possible harm to a worker with sight in both eyes, the standard of
care owed to Paris was higher than usua [Show Less]